Dorn v. Teacher Standards & Practices Comm'n

316 Or.App. 241

504 P.3d 44

Devon L. DORN, Petitioner,

v.TEACHER STANDARDS AND PRACTICES COMMISSION, Respondent.

A168583

Court of Appeals of Oregon.

Argued and submitted October 8, 2020.

December 8, 2021

Barbara J. Diamond, Portland, argued the cause for petitioner. Also on the briefs was Diamond Law.

Jona J. Maukonen, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

MOONEY, J.

Licensee petitions for judicial review of a final order of the Teacher Standards and Practices Commission (TSPC) that revoked her teaching license. On review, licensee raises six assignments of error that essentially challenge (1) the TSPC's finding that licensee falsified records to support the existence of a meeting that did not occur, and (2) the TSPC's choice of revocation as the sanction. Licensee's first, second, third, and sixth assignments challenge the sanction. The fourth assignment challenges the finding that licensee falsified records, and the fifth assignment challenges the TSPC's failure to make certain findings. Licensee concedes, and we agree, that the first assignment is moot. We address the remaining assignments below. We conclude that the TSPC's order, including its choice of sanction, is supported by substantial evidence and reason. We affirm.

We review an agency's order in a contested case for errors of law, ORS 183.482(8)(a), substantial evidence, ORS 183.482(8)(c), and substantial reason, Sachdev v. Oregon Medical Board , 312 Or. App. 392, 405, 494 P.3d 1018 (2021). Our review is restricted to the record. ORS 183.482(7). A finding is supported by substantial evidence so long as "the record, viewed as a whole, would permit a reasonable person to make that finding." ORS 183.482(8)(c). Substantial reason exists where the agency has articulated a "rational connection between the facts and the legal conclusion" that the agency draws from them. Sachdev , 312 Or. App. at 406, 494 P.3d 1018. We review the TSPC's application of ORS 342.175,¹ the governing statute, for substantial evidence and reason. Id. at 405, 494 P.3d 1018.

We draw the relevant historical and procedural facts from the TSPC's final order and the undisputed evidence in the record. Licensee taught special education classes at North Valley High School in Grants Pass from 2003 to 2013. During the 2011-12 school year, licensee experienced significant medical problems, underwent surgery, and developed substance and alcohol dependence issues. During the following school year, she fell behind in her individualized educational plan (IEP) paperwork and did not timely complete IEP files for 28 of her 30 students. Questions arose about whether licensee had followed policy in conducting IEP meetings and whether she had falsified documents to create evidence of an IEP meeting that had not occurred. Licensee sent emails to other teachers requesting modification of student grades indicating that those students were on modified diploma tracks when they were not. Licensee was initially placed on an action plan and shortly after that she was arrested for DUII relative to a motor vehicle accident in which she "sideswiped" a vehicle with several high school students in it. Licensee was terminated from her position at North Valley High School and, as staff searched her desk area for her keys, they located a soda bottle with alcohol in it. Licensee acknowledged that the bottle of alcohol was hers. The TSPC charged her with "gross neglect of duty" and "gross unfitness," in violation of ORS 342.175(1)(b) and (c).

A four-day contested case hearing was conducted before an administrative law judge (ALJ). The questions of whether licensee had misrepresented that she held an IEP meeting for a particular student on November 27, 2012, and whether she had falsified IEP documents to create evidence that the meeting had actually occurred, was the subject of much testimony and argument. The ALJ found that licensee's testimony about the November 27 IEP meeting was not credible. He concluded that licensee committed gross neglect of duty, was grossly unfit to be a teacher and that revocation was "an appropriate sanction." The ALJ proposed that the TSPC issue an order concluding that licensee

"committed gross neglect of duty and demonstrated gross unfitness. Her license should be revoked, with revocation stayed; she should serve a 90 day suspension; she should abstain from all alcohol or non-prescribed controlled substances, and she should be required to provide monthly reports on the timeliness of her special education paperwork."

The ALJ explained that he was recommending a stay of the revocation because licensee's violations occurred during a period of time that corresponded with her struggle to overcome alcohol-related issues and, further, that she had completed alcohol treatment, was engaged in ongoing recovery work, and had been successfully employed in two subsequent teaching positions—one in Medford and one online. Licensee filed a number of exceptions to the ALJ's proposed order and sanction.

The TSPC considered the ALJ's proposed findings and conclusions of law along with licensee's exceptions to the proposed order. It adopted the ALJ's findings of fact and credibility and, like the ALJ, concluded that (1) licensee had committed "gross neglect of duty" and (2) revocation was an appropriate sanction. The TSPC, however, did not adopt the ALJ's conclusion that licensee was "grossly unfit," explaining that she had "sought alcohol treatment" and was "sober as of the time of the contested case hearing." The TSPC also declined to adopt the ALJ's proposal to stay the revocation and impose probationary-style conditions, explaining that,

"having exercised its discretion to consider the pertinent factors in OAR 584-020-0045, the Commission determines that revocation of the license in this case is appropriate for the following reasons:

• "Conduct involved falsification of special education records

• "Conduct involved a vulnerable population

• "Conduct risked educational opportunities to students

• "Conduct risked harm to the school district

• "Conduct involving alcohol in school is not tolerable under any circumstances

• "Licensee has failed to take accountability for falsifications

"The above reasons, along with the Commission's discussion of each violation above, support imposition of license revocation in this case. The Commission, in its exercise of discretion, does not believe that a lesser sanction is appropriate in this case. Licensee's conduct created a risk of harm to all of her students. And it created a risk of harm to those who rely on student IEPs and the IEP process, including students and other educators. See OAR 584-020-0045(4) (risk to students, other educators, or the public). Further, Licensee was willing—at the time of the falsifications and afterwards—to cover-up shortcomings in her professional performance, rather than addressing issues that arose. See OAR 584-020-0045(2) (‘likelihood of a recurrence of the misconduct or violation’) and (4) (‘educator's state of mind at the time of the misconduct and afterward ’) (emphasis added).

"Licensee's failure to take accountability for the falsifications is particularly significant to the Commission in choosing to impose revocation. The Commission shares the ALJ's concern with petitioner's continued ‘lack of credibility’ regarding the November 27, 2012 IEP. ALJ Barber found Licensee's testimony about the November 27, 2012 IEP meeting lacked credibility for a number of reasons. In particular, as ALJ Barber found, Licensee continued in her testimony to maintain that the IEP meeting had occurred and, in fact, her ‘claimed certainty about the November 27, 2012 IEP meeting grew even more specific at the time of her testimony in May 2017.’

"The Commission finds Licensee's testimony on her treatment and work performance does not compel a sanction less than revocation. Licensee testified after she had completed her inpatient treatment."

This petition for review followed.

We begin with the fourth assignment of error because it relates to the TSPC's factual findings and conclusions concerning the specification of gross neglect of duty alleging that licensee falsified IEP records. Licensee contends that the TSPC's finding that she "fabricated the record of an IEP meeting" is not supported by substantial evidence and reason. We disagree.

The TSPC adopted the ALJ's findings of fact and credibility determinations. The TSPC thus concluded that licensee's testimony about the November 27, 2012, IEP meeting was not credible, that "the meeting did not actually occur," and that licensee contrived the supporting paperwork. In its final order, the TSPC explained how it reached that conclusion by walking through licensee's testimony and earlier statements and noting that her memory grew more specific with the passage of time. Reasoning that memories tend to fade rather than sharpen with the passage of time, the TSPC discounted licensee's testimony that the meeting occurred. In finding that the meeting did not occur, the final order describes how other evidence—the lack of "contemporaneous paperwork," such as calendar entries, phone logs and the hand-written notice; the absence of signatures on the IEP paperwork submitted before December of 2012; the parent's testimony that he did not receive notice of the November 27 meeting; and the testimony of one of the teachers who said that the meeting did not occur and the other teacher who did not recall such a meeting—considered in conjunction with licensee's testimony led to that conclusion. That explanation supports that conclusion on this record.

As we have explained,

"our review function under ORS 183.450 ‘is not to substitute a court's findings of fact for an ALJ's [or agency's] findings of fact, when there is substantial evidence in the

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